Sexting punishment is unjust says magistrate

Nicole Brady

Teenagers have been placed on the sex offenders' register for sexting offences.

A SENIOR Victorian magistrate who presided over a case in which a youth pleaded guilty to teenage sexting offences has condemned as ''so unjust'' the mandatory laws that meant the young man was registered as a sex offender.

The magistrate, who works in country Victoria, said the lack of judicial discretion in such cases meant severe consequences for young people who posed no threat to society and were often guilty of little more than naivety.

The magistrate, who spoke on condition of anonymity, said he had made the unusual decision to speak out because he was troubled by cases recently identified by Fairfax.

He presided over the case of the country youth, then aged 18, who was sent four uninvited text message pictures of girls, aged between 15 and 17 years, topless or in their underwear. Police found the pictures on his mobile phone and laptop and charged him with child pornography offences.

On legal advice the youth pleaded guilty and was sentenced to a one-year good behaviour bond without conviction. The magistrate refused the prosecutor's application for the young man to be placed on the sex offender register but police later realised his guilty plea resulted in mandatory registration for eight years. Magistrates have discretion for those aged under 18, but none for adults.

''These people shouldn't be regarded as sex offenders. It's going beyond the pale in relation to the imposition of long-term penalties which are not judicial penalties, they're not fines or community-based orders or even sex offender treatment programs. This is a limitation on what a person can and can't do for the next eight years of their life, for God's sake,'' the magistrate said.

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The magistrate said that in the sexting cases coming before him in court the offenders ''have a minimal amount of culpability attached to them and a minimal amount of danger to any other person in the community. That's when it becomes so unjust.''

He called for magistrates and judges to be given discretion over who ought to be listed as a sex offender. ''We're the ones that see the material, we hear the pleas from the legal practitioners, we get to hear the prior convictions if there are any, we get to see the actual participants - the people who have been involved in this sort of activity,'' he said.

The country magistrate said he first learnt of the rise of adolescent sexting - people sending naked or revealing pictures of themselves via their mobile phones or the internet - about two years ago from a police officer who had been talking to local school children.

''This person said to me there was serious concern that sexting was in epidemic proportions. If you hadn't had pictures taken with no gear on you were part of the outer scene.''

Under Victorian law, it is an offence to possess or transmit child pornography, which is defined as images showing those under 18 ''engaging in sexual activity or depicted in an indecent sexual manner or context''. Anyone over 18 found guilty of possessing or transmitting child pornography is automatically listed as a sex offender.

The Sex Offender Registration Act was brought in by the Labor government in 2004, with bipartisan support, to enable police to monitor paedophiles and other serious sex offenders.

The magistrate said some of the adolescent sexting material he had seen ''certainly is grossly pornographic and some of it almost makes you feel unwell''.

But he said the only harm in cases where such pictures had been forwarded to other people was to the girl in the pictures. While the consequences were often traumatising for the girl, the males involved were not paedophiles or serious sex offenders.

''The parties are no danger to the community, they're no danger to kids, it's an exercise in many cases in naivety, not even quite stupidity, just naivety,'' he said.